Attorney: Ohio execution changes not acceptable

In this undated photo released by the Ohio Department of Rehabilitation and Correction shows Ronald Phillips. Phillips, a death row inmate who raped and killed his girlfriend's 3-year-old daughter, wants his upcoming execution delayed while he fights the state's newly announced — and never tried — lethal injection process. (AP Photo/Ohio Department of Rehabilitation and Correction)

COLUMBUS, Ohio (AP) — A death row inmate sentenced to die for raping and killing a 3-year-old girl was expected to testify at a hearing in federal court Friday as his lawyers challenge the state's new, never-tried lethal injection system.

Attorneys for condemned killer Ronald Phillips want a federal judge to delay Phillips' Nov. 14 execution while they gather evidence as part of their lawsuit against the two-drug process.

The Ohio Department of Rehabilitation and Correction announced a new execution policy last month and said Monday that it would use that system's second option: a combination of a sedative and painkiller never tried before in a U.S. execution.

Phillips' attorneys say the department's announcements came too close to the execution date to allow a meaningful challenge. The state says nothing is substantially different about the new system.

Judge Gregory Frost originally granted Phillips permission to testify in person, then switched to the video testimony when it was clear courtroom technology could handle the unusual arrangement. There are no recent examples of Ohio death row inmates testifying in person or by video in federal court cases.

The hearing Friday began by focusing on the state's decision to allow the prisons director or death house warden to delegate responsibility for changes in the execution process. That could include any deviation from the policy, down to paperwork documenting a particular step.

Ohio has walked away from that promise with the new policies, Allen Bohnert, an attorney for Phillips, told the judge.

"Close enough for government work is not acceptable in applying this death penalty protocol," Bohnert said.

An attorney for the state said Ohio is committed to carrying out the execution in a humane, dignified and constitutional manner and understands that commitment.

"The state will do what the state says it will do," said Christopher Conomy, an assistant Ohio attorney general.

Phillips' attorneys are also challenging the state's new policy for the lethal drugs it will use.

The state's first choice is a specialty dose of pentobarbital mixed by a compounding pharmacy. If that can't be obtained — as in the case of Phillips' execution — the state will use a new, two-drug method to put Phillips to death.

Phillips' lawyers argue in court filings that the two drugs could cause severe side effects, including painful vomiting.

Those drugs Ohio is proposing to use on Phillips will cause him to stop breathing within a few minutes, an anesthesiologist said in a statement Thursday as part of a filing by the state in support of the new method.

Irreversible brain and heart damage will follow and the inmate will die a few minutes later, according to University of Massachusetts doctor Mark Dershwitz.

The drugs are midazolam, a sedative, and hydromorphone, a painkiller.

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Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus